In the latest issue of the Adirondack Explorer, Brian Mann asks whether the approval of the Adirondack Club and Resort in Tupper Lake reflects disarray or weakness in the environmental movement.
The answer: it’s hard to tell.
We do know that in the end the Adirondack Council broke ranks with Protect the Adirondacks and Adirondack Wild and endorsed the mega-development. But up until then, the council also had opposed the project and in fact offered an alternative development plan that would have been more environment-friendly. The council’s change of heart (after revisions to the development) may have given cover to some of the greener commissioners on the Adirondack Park Agency to vote for the project, but it’s hard to believe the last-minute endorsement altered the outcome. After all, the board voted 10-1 in favor of the resort.
Perhaps the environmental organizations could have mounted a stronger case against the resort or galvanized more public opposition, but they weren’t feckless. In one major concession, the developers agreed not to allow further subdivision of the so-called Great Camp lots on lands classified Resource Management, the APA’s strictest zoning category for private lands.
Longtime activist Peter Bauer, the head of the Fund for Lake George, told Mann that he thinks it would have been impossible for the environmental organizations to stop the project outright. He also said this defeat—assuming it is a defeat—is outweighed by the conservation of hundreds of thousands of acres in the past fifteen years.
What does the approval of the Adirondack Club and Resort say about the state of the environmental movement in the Park? Click here to read Mann’s story and let us know what you think.
Photo by Carl Heilman of project site near Big Tupper Ski Area.
Will the Adirondack Park Agency reform the way it identifies and assesses impacts to wildlife habitat from new development? Will it employ 21st century ecological understanding by evaluating the ecological impact zone of houses built in the Adirondack backcountry? Will habitat fragmentation, perforation, edge effect, spatial configuration and connectivity, land alteration and additional indicators of ecological impact that Dr. Michale Glennon introduced as evidence at the Adirondack Club and Resort hearing be used as evaluative tools? For that matter, will testimony at future adjudicatory hearings actually matter? » Continue Reading.
The outcome to approve the Adirondack Club and Resort was not a surprise. The ten to one margin of the vote was a surprise. Nor was it surprising that Commissioner Richard Booth assembled the reasoned arguments why this massive, speculative real estate subdivision should be denied. He has an excellent mind, an articulate voice, and a logician’s ability to arrive at the kernel of a matter in relatively few words, readily dispensing with the “dead wood” of an argument to arrive at the heartwood at its core.
The vote went in alphabetical order, so Mr. Booth went first. Here is what he forcefully and passionately argued, in ascending order of importance: 1. Independent experts testified at the hearing that the project sponsor’s sales projections and real estate valuation estimates were completely unrealistic. Since it is the Agency’s job to take into consideration the possible economic and community benefits of an application in judging whether or not there are undue adverse impacts to the Park’s sensitive ecological and physical resources, the failure of the applicant to come up with even remotely reliable quantitative figures (it was shown in the hearing that the applicant derived the projections himself without aid of a professional appraiser or market analyst), means that the Agency must in rendering its judgment, as a matter of the law, largely discount the claims of large or even significant economic benefit;
2. Despite numerous requests to do so by the Agency, the project sponsor failed to conduct a wildlife inventory and assessment, something that is rather routinely done for smaller development projects elsewhere in the state. This failure, in and of itself, is not the central problem. The central problem is that such an inventory and assessment is crucial to judge whether the proposed project design poses adverse impacts to wildlife habitats and migratory pathways. If you don’t know what lives on the site, and where their habitats are, how can you determine the impacts? That is the “big hole” in the application that “never got filled.” This hole can not be corrected with project conditions, he said. To emphasize his argument, he reminded his colleagues that a single hearing expert (Dr. Michael Klemens) who was never invited to tour the property found in a matter of one day and night in a very small section of the project area more species than the project sponsor identified in seven years;
3. Most importantly, the project is not consistent with the description, purposes, policies and objectives of Resource Management land because it spreads houses across thousands of forested acres contrary to the letter and intent of the law. The ecological integrity of Resource Management, and the paramount importance of protecting its delicate biological and physical resources under the APA Act, is violated. A yes vote would send a negative message to other applicants that this type of development on Resource Management is acceptable. Furthermore, given the acreage involved there are many alternative ways to design the project which would avoid this violation, alternatives that the applicant failed to analyze.
The other Agency members followed, many either agreeing with Mr. Booth or sympathizing with his arguments, but concluding that “the process had worked,” the numerous project conditions would adequately protect natural resources, while a permit would lead to a better future for Tupper Lake. “It’s been an education for me,” said Mr. Lussi. “The sponsor has been receptive to some of the sensitive issues, and removed a number of upland developments. The plan is thoughtfully done.” Ms. McCormick of the State’s Economic Development Corporation gushed: “I am happy to vote yes. We’ve protected the land, and achieved tremendous economic benefit.” This is all in line with Governor Cuomo’s program for job growth, she noted. Mr. Wray was the last vote, and he “agonized” over his decision, nodded to Mr. Booth’s arguments, then concluded that “notwithstanding my discomfort, we can justify this.” How he justified it remained unsaid.
Mr. Booth’s logical arguments failed to carry the day because other members largely ignored the hearing evidence (upon which their decision was to rely on) and the law in order to fall into line with one or more of the following leaps of faith:
a. the project sponsor’s assertions of great economic benefit, hearing evidence to the contrary notwithstanding;
b. the feeling that our staff are the experts, we trust them and they say this is OK. Staff concluded that numerous project conditions would satisfactorily protect the park’s delicate physical and biological resources, and that this is an “ever so carefully regulated design” (to quote APA Chair Ulrich);
c. this development seems to fall into line with Governor Cuomo’s economic development program, the APA law and hearing evidence notwithstanding.
There is a large cultural sympathy for Tupper Lake that must also be acknowledged as a factor. “We have to do something for Tupper” is an undercurrent from many in that town and beyond it which, while hardly constituting evidence justifying ten votes in favor, does play with an Agency that craves public acclaim. Tupper Lake does need and deserve plenty of help to develop as a community, I readily agree. However, in this case the fact that “doing something for Tupper” may actually mean taking the same speculative gamble with the community’s resources, services and taxpayers that Mr. Foxman and Mr. Lawson and the project boosters are taking did not seem to overly concern these members.
A critical factor in the outcome of the vote, in my opinion, is that the APA staff performed badly (I could use a stronger word) in their summaries of the adjudicatory hearing evidence for the Agency’s members. On numerous occasions the staff downplayed what they considered “bad” evidence, and emphasized what they saw as evidence favoring the project. For instance, bad evidence that the project posed undue risk to the area’s natural resources from Drs. Glennon, Kretser and Klemens, was often given a sentence on a summary slide, and then members were invited to read the relevant pages of testimony for more. Good evidence, for example staff conclusions that deed covenants adequately constituted project alternatives and satisfactory resource protection, were spelled out in their entirety on a slide.
A particularly egregious example is that in the final project permit order APA staff chose to illuminate a positive April, 2007 letter from the Franklin County Industrial Development Agency “taking official action toward the issuance of PILOT bonds on behalf of the Project Sponsor finding that the Project constitutes an appropriate ‘project’ within the New York State Industrial Development Agency Act.” The staff ignored “bad” evidence in the form of an FCIDA communication dated Feb 1, 2011 which so clearly makes its 2007 letter irrelevant and dated: “It has been four years since ACR’s application to the IDA in February 2007, and nearly that long since an inducement resolution was passed in April, 2007. The board that approved the project has since turned over four times and the project has changed….we have not determined the legal basis, precedent or workability of it (the PILOT) (emphasis mine)…it is premature for the IDA to provide testimony or opinion in the case of the ACR.” Why wasn’t this 2011 letter quoted in the final project order?
Another badly flawed project “finding” that the staff reached is this: “Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures.” This statement is utterly at variance with the hearing evidence. APA’s witnesses Sengenberger and Spada, along with outside experts, all found that the applicant failed to do what the Agency asked it to do, repeatedly, and that it was the applicant’s burden and responsibility to conduct the wildlife studies, not APA’s. At the last moment in the Agency’s deliberations this week, staff distributed to the members a 1993 APA staff memorandum titled “Guidelines for Biological Survey” which had not been disclosed during the hearing. Staff described the memorandum as supporting their finding that standard Agency guidelines and procedures with respect to wildlife and habitat had been performed. In fact, a close reading of this memorandum and its tables satisfies me that the Adirondack Club and Resort easily reached the threshold required for a comprehensive, quantitative biological survey – precisely the opposite conclusion reached by the staff. Agency members did not have adequate time to study this memo, and made no objection to the way staff characterized it.
1. The hearing’s evidence, upon which the members were legally and solely bound to consult in rendering their decision, actually played a relatively insignificant role in that decision. Witness Mr. Lussi’s closing comment that the land has been heavily logged, and is therefore not pristine – seemingly deaf to abundant hearing evidence, even from the Agency’s staff, that a history of logging in no way compromises the ecological integrity and functioning of this Adirondack landscape, while housing development can and does.
2. The facts emerging from the hearing that the applicants failed to carry their burden of proof on wildlife, alternatives and fiscal and economic impacts, and that this did not sufficiently bother more of the members calls into question how and why this Agency performs adjudicatory hearings;
3. The staff was not impartial in the way they chose to present the evidence, and in the evidence they chose to emphasize for the members;
4. Too many staff findings of fact and conclusions of law were not faithful to the hearing evidence and official record;
5. Many if not all of the “significant changes” to the original site plan (applauded by the members as something new) had been decided four years ago.
6. The Agency’s press release issued shortly after the vote was self-congratulatory to an extreme, cited all of the economic and employment benefits shown in the hearing to be highly exaggerated (Mr. Lussi even lectured the applicant about these exaggerations), and could have been written by the applicant himself.
7. There are some good project conditions, such as the after-the-fact wildlife studies and the independent environmental monitors, but these are wholly inadequate to correct such a deficient and defective project application.
I have interacted with the APA for twenty-five years. I readily admit to a point of view. I also have had and expressed great respect for the Agency and its staff over the years, and stood up for the Agency’s mission, budget, policies and staffing levels on many occasions. My final conclusions are, therefore, hard ones for me to express: they are that the Agency voted to give away the park, failed in its duty, failed the public’s confidence, and deserves to be chastised and investigated in the way it is currently performing its statutory mission to protect the “unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack Park” (Sect. 801, APA Act).
Photo: From the summit of Mt. Morris and Big Tupper Ski Area looking down at the ACR site, Tupper Lake in the distance.
The Adirondack Club and Resort project in Tupper Lake has been green-lighted by the Adirondack Park Agency in a 10 to 1 vote. APA Commissioner Richard Booth was the lone vote no.
In addition to being livestreamed via the APA’s website, Jessica Collier at the Adirondack Daily Enterprise and North Country Public Radio‘s Brian Mann have both been tweeting each speaker’s comments as the vote took place. A proposal to conduct a wildlife study of the development area was defeated in an earlier vote this week. The Almanack has been covering the development project since 2005. Almanack contributor and Adirondack Explorer editor Phil Brown wrote about what the project could mean to future fragmentation of lands designated Resource Management this week.
You can find out all the details of the project online [pdf].
Environmentalists raised many objections to the Adirondack Club and Resort, but perhaps the biggest is that the project will fragment Resource Management lands on and near Mount Morris in Tupper Lake.
In hearings last year, Michale Glennon and other scientists raised concerns about the loss of wild habitat. The argument is that the construction of roads, driveways, homes, and lawns will change the suite of wildlife that now occupies the woods. We might, for example, see more blue jays and fewer hermit thrushes. Yet Brian Mann reported last fall for the Adirondack Explorer and North Country Public Radio that it’s unclear whether the fragmentation will have much impact in the greater scheme of things, given that the lands in question are adjacent to tens of thousands of acres of protected forestland. In short, hermit thrushes are not about to disappear from the Adirondack Park.
Dave Gibson of Adirondack Wild and others contend that Brian gave too much credence to outside experts. One of these experts, Hal Salwasser, dean of Oregon State College of Forestry, called the proposed resort “a blip on the landscape in a regional scale.”
Reading that the biggest development ever reviewed by the Adirondack Park Agency is a “blip” is sure to rankle opponents of the project. But the man said what he said. Quoting Salwasser does not make Brian biased. Indeed, if he had not quoted him, that would have been evidence of bias. (Click here to read the story in question. You also can click here to read another story by Brian in the latest Explorer.)
As far as we know, there is nothing special about the woods where the developers want to build. They have been logged for decades. That said, it is shocking that the developers failed to undertake a comprehensive wildlife survey—and that the APA failed to require one. Even if there were little chance of finding anything significant, it should have been done.
Most people seem to think the APA will approve the project this week. If so, we hope it demands a wildlife survey as a condition of the permit.
Looking ahead, the bigger question—even bigger than this project—is what will become of the rest of the Resource Management lands in the Park. How many “blips” like the Adirondack Club and Resort can the Park withstand?
The Adirondack Park Agency Act defines Resource Management lands as “those lands where the need to protect, manage and enhance forest, agricultural, recreational and open space resources is of paramount importance because of overriding natural resource and public considerations.” Examples of “primary uses” of such lands include forestry, agriculture, hunting, and fishing.
Nevertheless, the construction of single-family homes is allowed as a “secondary use.” Under the law, landowners may build fifteen principal structures for each square mile, which works out to one every 42.7 acres.
The Adirondack Club and Resort falls well within the density guidelines: the developers intend to build 83 principal structures on 4,740 acres of Resoure Management lands—or one for every 57 acres. Still, critics say the resort’s design fails to meet the law’s requirement that homes on Resource Management lands be built “on substantial acreages or in small clusters.” Unfortunately, the APA has never come to grips with what this language means.
The Adirondack Park has 1.5 million acres of Resource Management land. Some of these lands are protected by conservation easements, and others might be undevelopable. For the sake of argument, let’s say that leaves a million acres of RM lands where a house could be built. According to the APA’s building-density guidelines, landowners could construct up to 23,255 houses.
In a 5.8-million-acre Park, each house would be a truly small blip, but if they all get built, these 23,255 homes, with their driveways, lawns, and lighting, would have a much bigger impact on habitat and wildlife than the Adirondack Club and Resort will.
Some would argue that it’s improbable that all the Resource Management lands will be developed, but it is undeniable that more of them will be developed in the years ahead. It’s time to take a hard look at the APA Act and ask whether it adequately protects the privately owned backcountry.
Photo by Carl Heilman: site of proposed Tupper Lake development.
Phil Brown is the editor of the Adirondack Explorer newsmagazine.
Of all the issues out in the media about the Adirondack Club and Resort application and hearing now under review by the APA, there has been a surprising lack of information and discussion about water – sewage from all those homes, potable water supply, run-off, impacts on streams and Tupper Lake itself, and impacts on the Village of Tupper Lake’s public water and sewage delivery and treatment systems.
These are hardly glamorous issues, but they are of intense concern to local residents, village officials and to Park advocates alike, as well as to our public permitting agencies. Tupper Lake, into which a good deal of the sewage effluent will flow, is an extremely important Adirondack freshwater lake, and an important water source for the Village and Town of Tupper Lake. One of the problems in reporting and discussing these matters is that water issue jurisdiction is split between the APA and the Department of Environmental Conservation (DEC), and it is not at all clear to the public where one agency’s jurisdiction over water issues ends and the other’s begins. What is clear is that the ACR applicant, Mr. Foxman, has not completed his applications for the four or five DEC permits he must have to begin construction. These applications pertaining to water supply, sewage and wastewater treatment, and storm water run-off and pollution prevention were all noticed by DEC as being incomplete in a long letter to the applicant’s consultant, the LA Group, dated October 18, 2010.
The DEC water-related permits are completely separate from the APA permit. Indeed, the DEC letter states that only after the water applications are deemed complete and published to allow for public comment, and only after those comments are analyzed can the department judge whether or not to hold a separate DEC public hearing on ACR water issues. So, even if APA issues a permit, ACR is hardly home free. Mr. Foxman noted this in recent interview. Then, there are the necessary Industrial Development Agency hearings required before the IDA can issue the private revenue bonds to build the sewer and water systems, but that’s a whole other story.
The contents of that DEC letter have long been eclipsed by the APA public hearing, but they are significant. For one thing, the department seems very concerned about the applicant’s stormwater pollution prevention plan (so-called “SWPPP”) as well its wastewater treatment plant proposed just south of Cranberry Pond. As much as possible, DEC seems to want ACR to dispose all its sewage effluent in the Village of Tupper Lake’s sewage treatment plant, and not on site. During 2010, DEC developed new stormwater standards based on a policy of non-degradation of receiving waters. In other words, Tupper Lake can not receive more pollutants from storm and sewage runoff after developing the ACR than it receives currently without the ACR development. And there is the question of current conditions. How is change measured? DEC is not comfortable with the adequacy of current water quality data – as a baseline for measuring change in the watersheds affected by the ACR. DEC may demand that Mr. Foxman conduct a thorough baseline examination of current water quality conditions in the streams and “receiving waters” such as Cranberry Pond and Tupper Lake.
Of the applicant’s August 2010 stormwater plan update (SWPPP), DEC writes that the applicant’s plan is “inadequate for addressing stormwater runoff from the proposed development….the significance of the post construction stormwater discharges and the extent of the proposed changes to the natural conditions of the drainage area raise a concern to prevent the receiving waterbodies from potential impact. The plan is not presenting any water quality analysis, water balance analysis, or downstream analysis particularly to the most immediate water courses feeding to the down gradient streams or lakes. Discharges to small lakes and headwaters in the stream network raise the question of cumulative impact of the development on these types of waters. The primary concern is the impact of increased flow volume and nutrients due to runoff from new development.”
So, DEC has a long list of technical issues the applicant must address for stormwater, including new design standards, reducing the total amount of runoff, and greater use of “green infrastructure” to handle the runoff. To further quote from the twenty page letter: “Due to the large areas of steep slope being disturbed as part of this project and the number of sensitive receiving waters located at the project site, the individual SPDES (State Pollutant Discharge Elimination System) permit is going to require the owner to hire a dedicated erosion control team whose primary role will be repairing, maintaining and upgrading the erosion and sediment control practices that will be used at the site.”
This part of the DEC letter is interesting because it seems to conflict with the APA staff’s conclusion that Mr. Foxman has avoided building on steep slopes, and that “implementation of proposed grading, drainage, site layout, erosion and sediment control, on-site wastewater treatment, road and stormwater plans will serve to protect soil, surface water and groundwater resources” (APA Draft Conditions). Those APA draft conditions merely note in one sentence that the applicant has to comply with updated DEC stormwater runoff design standards.
There are a host of sewage related concerns in the DEC letter. First, the letter states that the applicant has yet to provide engineering details about how the new sewage plant would operate, or the wetland treatment system downstream of the plant which the applicant says will “polish” the effluent. Second, DEC feels the applicant has yet to evaluate alternatives to the current proposal to send some sewage to the village plant, send some to a new plant to be constructed above Cranberry Pond, and build septic tanks and leach fields for about half of the 39 proposed Great Camps. Alternatives are “a critical component of the Department’s review because the Department must ensure that the project conforms to the State’s water quality anti-degradation policy…At this time, it appears that connection to the municipal sewer system remains a viable alternative.” The letter notes that one new proposed plant near Cranberry Pond, designed to treat up to 150,000 gallons per day of sewage, is not the preferred solution. A new on-site sewage system should be “the treatment option of last resort. Due to phosphorus in the wastewater, subsurface discharges are the preferred alternative.”
The letter notes this concern: “Phase 1 of the proposed development is anticipated to generate 12,448 gallons per day of sewage. The Department is concerned that during low occupancy periods, the wastewater treatment plant will experience flows well below this rate and will have difficulty operating properly. Please provide an evaluation of how the plant will perform during periods of low flows and also during cold weather periods.”
DEC is very concerned about long pipes or mains serving infrequently occupied residences far from the source of water or the treatment of the sewage. Having sewage, for instance, sit for long periods in the long, small diameter force mains and grinder pump stations necessary to reach some of the Great Camps will result in serious operation and maintenance problems, the letter notes. Only when the DEC is convinced that there is no possible on-site septic opportunities for all of the Great Camps will it allow this type of sewage development, it states. At present, ACR plans to sewer the 15 western Great Camps because, in APA’s opinion, bedrock makes it infeasible to develop septic systems there.
“There are inherent operational problems in running long water supply mains” to serve the Great Camps, the letter states. DEC concerns are that water stagnates in these long pipes, and that this stagnant water will lack contact with chlorination or other disinfectant agents, and that secondary chemical byproducts could form in the water. DEC recommends that no Great Camps be served by the project’s water district, and all be served by on-site wells. This recommendation appears to conflict with the current proposal that has gone through the APA hearing, whereby at least 15 western Great Camps are planned to be served with public water supplies.
One could go on and on. APA still has received no septic system plans for many of the Great Camps, and many of these may not be feasible to be built. Impacts on Cranberry Pond from sewage effluent, from stormwater runoff and from use for snowmaking are very much up in the air. Many citizens are worried about all of the pharmaceuticals that ACR residents will flush down their toilets, which will end up untreated in Tupper Lake and Cranberry Pond.
Then, there are unanswered questions about how any of the ACR’s sewage will get to the Village treatment plant. While Village officials and DEC seem to agree that the recently upgraded Village Sewage Treatment Plant has sufficient capacity to handle ACR, the sewer collection system will need a major upgrade to get ACR sewage to the plant. A new four-six inch force main will have to be built under the Rt. 30 causeway across the Tupper Lake marsh, and DOT is adamant not to dig up the road again. Outside of the road, one side is Forest Preserve, and all is freshwater marsh. Mr. Foxman had the chance to put a new force main in when Rt. 30 was freshly dug up in 2006-2007, but refused to pay for it. A new main will be needed at Wawbeek Street. Then there are the necessary upgrades to the pump stations and gravity lines.
To sum up: DEC now requires far lower biological oxygen demand in waters receiving sewage effluent, meaning that treatment must remove much more of that demand before downstream release. How, in the cold Adirondack climate with strung-out infrastructure on and far beyond Mt. Morris will ACR achieve this? DEC requires more precise water quality measurements before development takes place to measure “non degradation of receiving waters.” When will ACR conduct these measurements? Through the DEC applications, the stormwater run-off performance of all of ACR’s housing and roads will be subjected to individual scrutiny. Meanwhile, there may be significant differences between what APA considers approvable, and what DEC deems sufficient from a water quality perspective. The public won’t learn much about all this during the APA’s current permit deliberations. But the other shoe, taking the form of costly final DEC permit submissions and possible hearings, will eventually drop.
Photos: Above, Mt. Morris from Cranberry Pond in winter; below, Mt. Morris from the Rt. 30 causeway.
The Adirondack Park Agency (APA) will hold its regularly scheduled monthly meeting on Thursday, December 15 and Friday December 16, 2011 at APA Headquarters in Ray Brook, NY. The meeting starts at 9:00AM. The normal monthly meeting agenda is changed to focus on the Adirondack Club and Resort project. The meeting will be webcast live; go to www.apa.ny.gov and click Webcasting from the Contents list. The public is also invited to view the webcast live in Tupper Lake at The Wild Center. This month the Agency continues its three consecutive monthly meeting cycle to deliberate project 2005-100, the Adirondack Club and Resort. This residential/resort project is proposed for lands in the Town of Tupper Lake, Franklin County. The Board began its review at the November 17-18 meeting. The Board continues its deliberations at the December 15-16 meeting. A decision is expected at the conclusion of the January 19-20, 2012 meeting.
On Thursday morning December 15, the Full Agency will convene at 9:00 for remarks from Chairwoman Ulrich and Executive Director Martino. Thursday’s meeting will conclude at 5:00. The Board will reconvene on Friday morning at 9:00 and conclude its business at 4:30. http://www.blogger.com/img/blank.gifhttp://www.blogger.com/img/blank.gif
Detailed December meeting agenda can be found online [pdf], as can additional December meeting materials (link).
The Agency’s Public Comment Policy does not allow any public comment related to matters before the Board for action. Therefore, during these meeting on the Adirondack Club and Resort project, the Agency can not accept any public commentary on Project 2005-100.
The Agency requests that anyone planning to attend the December meeting at the Agency’s Ray Brook headquarters please RSVP to Deborah Lester at 518-891-4050 by December 14, 2011.
People interested in viewing the webcast at the Wild Center are encouraged to contact Sally Gross at 518-359-7800 extension 116.
Today I select what I consider to be important excerpts from the testimony in the public adjudicatory hearing on the Adirondack Club and Resort. These particular excerpts come from testimony contained in the official hearing record delivered by four experts in the fields of wildlife science, conservation biology, and the ecological sciences.
These experts are Dr. Michael Klemens, Drs. Michale Glennon and Heidi Kretser, and APA scientific services staff director Dan Spada. In future posts, I plan to cite hearing testimony from experts in fiscal and community impacts and economics. The testimony was provided during the 19-day long Adirondack Club and Resort adjudicatory public hearing which spanned the period between late March and late June, 2011. This testimony is part of the hearing record, which closed in late October. The members of the Adirondack Park Agency must make a determination about the project based solely upon that official record. The members anticipate reaching a decision at their January, 2012 meeting. Their deliberations continue during the APA’s December 15-16, 2011 meeting, which is open to the public.
ACR is the largest subdivision and development proposal to come before the APA in 35 years. It’s comprised of 706 residential units, 332 buildings, a new ski lodge, restaurant, gymnasium, marina, equestrian center, and 15 miles of new roads, sewer, water and electrical lines spread over 6235 mostly undeveloped acres on rugged, forested terrain several miles from the Village of Tupper Lake.
Some of the testimony that I cite is pre-filed written testimony, and some is direct testimony and response to cross-examination during the hearing.
Dr. Michael Klemens, conservation biologist
During the April 27, 2011 hearing in Ray Brook, attorney for the applicant cross- examined Dr. Klemens about how extensively he had reviewed the application. Dr. Klemens responded:
“I looked at the overall layout of fragmentation on the site created by the distribution of the proposed uses, which snake all over the site, which are — basically I call sprawl on steroids. What you call the Great Camps, I call not-so-great camps. They’re basically large scale sprawl. I looked at the interface of the roads and the houses packed onto steep slopes above wetlands basically without any understanding of the biology, the ecology of the site. Yes, those things can occur on the site, but are they in the right place on the site? We don’t know because you haven’t provided us with any kind of information to make an informed planning decision based on science. This site reflects basically the hopes and aspirations of the developer, not any scientific understanding of the site.”
Asked how Dr. Klemens would define the term “ecological footprint,” Dr. Klemens responded on April 27 as part of the following Q&A:
“It’s the zone of impact and influence …– which will disrupt the environment writ large by a development. You can put — for example, …– a road is a great example. A road is a rather linear impact. It has a cleared area. It has swales or underdrains, and that. But the impact of a road, depending on the intensity of its traffic — and there’ve been lots of studies on this — the impact can extend a quarter to half a mile on each side of the road through road mortality, noise, and disruption. So that’s what impact analysis is — to understand how a layout on any development project or any use will actually spill over through lighting, through noise, through all those other variables into the ecosystem.”
Q. In looking at the materials that you did review concerning this application, can you describe in a little bit of detail what you perceived in your expert opinion to be the ecological footprint of this project?
A. It’s extremely large. I haven’t calculated, but it’s large because of the amount of roads and the amount — and the way the development is spread across the site.…– it’s a fairly large footprint. And again, that footprint will vary dependent upon also the species. The species respond — if you’re talking about wildlife, they’re responding at different scales. Birds respond at a different scale to amphibians, to a different scale to area sensitive carnivores. So it’s not — the impacts are at different scales. But this is a fairly spread out development. I mean basically to me …– it is sprawl. It is sprawl — the Great Camps are what I consider very, very large lot residential subdivisions in a sense. They’re very large. There’s one that’s actually – maybe approaches what? A thousand acres? But these things generally –…– it’s not unlike many suburban developments. These large dispersed developments give people the illusion …– of greenery and ecological integrity. In fact, they spread the impacts out with a huge amount of edge effect and a huge amount of impact. And — … that’s why you want to think about trying to make it more compact. And we heard excellent testimony yesterday about how making the development more compact would — … meet a variety of objectives.”
“There are large zones of influence on wildlife which will be disrupted by the project. People look at wildlife. They think wildlife moves in corridors. Wildlife moves across the landscape almost like sheet flow of water. There’s movement all through the landscape. And that continues for some species, less effectively in a logged landscape, but it continues, and there’s recovery. Once you put on a hard landscape of roads, development, and other amenities, you fragment that sheet flow of wildlife and organisms across the landscape.”
“I would anticipate based on my rapid amphibian assessment that there would be at least fifteen species of amphibians breeding on the site. For their small size, amphibians pack an ecological wallop because they control so much of the energy transfer in and out of ecosystems. Amphibians are bi-phasic, meaning that they breed in vernal pools and move to uplands the rest of the year. Wetland protection alone will not protect these species. The habitats of these animals are linked to uplands.”
Drs. Michale Glennon and Heidi Kretser, ecologists for the Wildlife Conservation Society’s Adirondack Program in Saranac Lake
Asked whether the proposed ACR would create an undue adverse impact on Resource Management lands, Dr. Glennon answered “Yes.” She wrote in prefiled testimony:
“An alternative design which reduced the spatial extent of the development associated with the great camp lots would have a much higher likelihood of reducing negative impacts to wildlife.”
“Biotic integrity is very likely to decline on the project site, and will decline more so than it would if development were primarily directed at the Moderate Intensity lands within the site.”
ACR is “likely to result in an increase in human-adapted, generalist species, with a concurrent decrease in those species which are more specialized and most likely those which are rare in New York State.”
“Cumulative impacts are significant.”
“Those species which tend to be negatively impacted by residential development are those which the APA Act intends to protect, such as species which are generally rare, many of them restricted to the Adirondack Park within NYS.”
“The proposed ACR development will negatively impact the majority of large forest blocks present on the RM lands because the large lot sizes associated with the great camp development result in the sprawl of homes and associated roads and driveways across a large proportion of the site, and in large core forest blocks being divided into smaller areas.”
“Among rare songbirds in NYS, more than half are forest birds and the majority of them are boreal and conifer specialists which are confined to the Park within NYS…They are iconic of the region, they are rare..and they are specialists on boreal and core forest habitats. Because we know they occur on or near the ACR property, the project will impact Key Wildlife Habitats.”
Asked whether there would still be undue adverse impacts even if the large eastern Great Camp lots were on “substantial acreages,” Dr. Glennon replied on June 24 as part of the following Q&A:
“Yes, I think it’s possible.” Q. And based on the current state of the science? A. Yes. Q. Would the impacts from those eight houses, if they were located on resource management lands, be significantly reduced if they were located so that their zones of ecological impact — I believe you called it — overlapped with each other and they were on short driveways close to a public road?
A. Yes, very definitely. And there’s probably lots of different ways in which they can be condensed – with fewer impacts on the landscape.”
Asked if the project as designed met the basic purposes of Resource Management lands, Drs. Glennon and Kretser both replied “No.”
Dr. Kretser wrote:
“The project as designed does not meet the basic purposes of RM lands. As evidenced by my colleague’s testimony, it does not protect the delicate physical and biological resources. The proposed project does not encourage proper and economic management of forest because the entire property is divided into smaller parcels…The proposal does not maintain the unique character of the Adirondack Park. The number of residential structures being proposed…represents more than have been added to the majority of townships in the park in the years between 1990-2004.”
Daniel M. Spada, biologist and staff director of NYS Adirondack Park Agency’s resource analysis and scientific services division
Asked on June 23 about the impacts to natural resources, and whether alternatives could be developed that avoided those, Mr. Spada replied:
“My current concerns on the resource management parcels, both on the large Great Camp lots and the smaller Great Camp lots is that those impact zones have not been collapsed. They haven’t been overlapped to the greatest extent possible, in my opinion. There are still some areas, I think, where driveways can be shortened, dwellings can be moved closer to roads, to existing roads, and that sort of thing.”
Mr. Spada was then asked “Are there other modifications that you think could reduce the impacts?” He responded:“Certainly. A reduction of the number of units.”
Q. Reduction of which units would you recommend as reducing the impacts?
A.”If you look at this map, Exhibit 244, and the resource management areas, it becomes been pretty obvious where there’s a high density of units in a given area. For instance, with the west face expansion, with the next seven hundred and fifty foot zone, it — it pretty well blocks out that area as far as being of utility for wildlife habitat. So that might be a spot where either units could be reduced in number or they could be reconfigured…I think we need to balance the number of units, the configuration of the units, and resources on the project site.”
Q. And to your knowledge, were those types of alternatives evaluated by the sponsor?
A. Not to my knowledge.”
In his pre-filed testimony, Mr. Spada wrote:
“While I agree that existing development and use of the project site already affects wildlife habitat, in my opinion the proposed project would increase the significance and duration of the impacts…the impacts from the changes to the existing roads in amount and seasonality included increased levels of habitat fragmentation and direct wildlife mortality.”
“The Great Camp Lots are arranged across the landscape in a relatively uniform configuration and the three-acre development envelopes are relatively widely separated from each other as in classic exurban development. To adequately protect the forest resources, the development should occur in a configuration that reduces impact zones from the development by overlapping them.”
Mr. Spada goes on to define Ecological Impact Zones (EIZ), assess the extent of impacts on wildlife, and discuss alternatives to the ACR layout. He writes:
“When the actual footprint and its EIZ for the components of this project are considered, the amount of wildlife habitat that would not be impacted by the project is considerably less than the amount of open space reported by the Project Sponsor…Over the entire site, 63% of existing wildlife habitat will be preserved.”
“In my experience this process (of identifying alternatives) can be short-circuited by identifying a preferred alternative prior to conducting the analysis. That is what has occurred in the case of this proposed project. In my opinion, the analyses noted above do not constitute a true alternatives analysis. Different scenarios were not described and impacts were not compared…In my opinion there has not been an organized and rational discussion of reasonable, potential alternatives.”
“Good design collapses and overlaps the zones of impact from the development activities to minimize negative effects…The twenty-seven small Great Camp Lots in RM are not clustered as tightly as possible, nor are their zones of impact overlapped to the greatest extent possible.”
“One alternative would be to eliminate the eight large Great Camp Lots east of Simon Pond, and reduce the size and spatial spread of the smaller western and eastern Great Camp Lots in RM. It’s possible under such a scenario that the eight large Great Camp Lots eliminated from east of Simon Pond could be relocated closer to the small eastern and western Great Camp Lots and closer to the ski resort. This would reduce road mileage and infrastructure costs, minimize loss of open space, minimize habitat fragmentation and allow for continued effective sustainable forest management east of Simon Pond. This alternative scenario, although suggested by Agency staff, was never proposed by the Project Sponsor nor was it evaluated to the same level as the existing proposal.”
Asked whether he agreed with the project sponsor’s contention that the area is currently highly fragmented by logging activity and the proposed development will decrease habitat fragmentation because logging activities will cease, Mr. Spada replied:
“No. The broad statement about the current state of the property is not supported by data and the conclusion that habitat will be improved is not justified by current research or scientific understanding. Logging disturbances are temporary, whereas structures and roads are permanent. Logging disturbances are also periodic and on discrete sites within the property, not constant and evenly distributed. There is one major logging road through the part of the property east of Simon Pond. The road is and will remain unpaved. It is used sporadically and traffic volume is low. It is unclear whether the proposal to access the eight larger Great Camp Lots on a year round basis has potential for greater impact than existing road use by two hunting clubs with many members on a typically seasonal basis.”
“Based on my experience and my review of recent research concerning habitat fragmentation [Exhibit 90, APA hearing staff response to Protect the Adirondacks, Discovery Request, Item 11: Glennon and Porter (2005) Trombulak and Frissell 2000, Hansen et al. 2005)], it is my opinion that bird community biotic integrity is not influenced by forest management as generally practiced in the Adirondacks. I believe that biotic integrity does respond positively to roadlessness and negatively to development. It is my opinion that long roads dividing undeveloped areas are of concern for fragmenting wildlife habitat. These impacts can be mitigated by minimizing the length, width and frequency of use of the roads and locating them near the periphery of undeveloped blocks of land. In reviewing this proposed project, Agency staff have asked the Project Sponsor to consider modifications to the proposed project and alternatives to the proposed project that would minimize these impacts.”
Photos: Above, from Mt. Morris looking at Tupper Lake; below, from Mt. Morris looking toward the Village of Tupper Lake.
The Adirondack Park Agency (APA) will hold its regularly scheduled monthly meeting on Thursday, November 17 and Friday November 18, 2011 at APA Headquarters in Ray Brook, NY. The meeting starts at 9:00 AM. The normal monthly meeting agenda is changed to focus on the Adirondack Club and Resort project. The meeting will be webcast live. In addition, the public is invited to view the webcast live in Tupper Lake at The Wild Center. This month the Agency will begin a three consecutive monthly meeting cycle to deliberate project 2005-100, the Adirondack Club and Resort. This residential/resort project is proposed for lands in the Town of Tupper Lake, Franklin County. The Board will review the project at the November 17-18 meeting, December 15-16 meeting and the January 19-20 meeting. A decision is expected at the conclusion of the January meeting.
Executive Director Martino said, “The review of the Adirondack Club and Resort project has drawn significant public interest. The Agency is very thankful to The Wild Center for their generous offer to allow the general public to view the webcast at the Natural History Museum in Tupper Lake. Given space limitations at APA Ray Brook headquarters, we encourage the public to take advantage of the opportunity to watch the webcast in Tupper Lake.”
On Thursday morning November 17 the Full Agency will convene at 9:00. At the start of Project 2005-100 deliberations, Executive Director Terry Martino will provide opening remarks followed by Advice of Counsel.
At 10:15, the Board will hear the project description followed by Board determinations on appeals of the Administrative Law Judge decisions rendered during the Adjudicatory Hearing.
At 12:30, the Board will review the Order for Project Hearing and discuss hearing issues ordered by Administrative Law Judge O’ Connell.
At 12:45 the Board will begin to review the record and deliberate the hearing issues. Thursday’s meeting will conclude at 5:30PM.
On Friday morning at 9:00, the Board will reconvene to continue working through the hearing issues. The Friday meeting will conclude at 3:00PM.
See the November meeting agenda for the time schedule and hearing issues descriptions [pdf].
The Agency’s Public Comment Policy does not allow any public comment related to matters before the Board for action. Therefore, during the three consecutive meetings planned for the Adirondack Club and Resort project, the Agency can not accept any public commentary on Project 2005-100.
The Agency requests that anyone planning to attend the November meeting at the Agency’s Ray Brook headquarters please RSVP to Deborah Lester at 518-891-4050 by November 16, 2011.
People interested in viewing the webcast at the Wild Center are encouraged to contact Sally Gross at 518-359-7800 extension 116.
As Brian Mann recently reported on North Country Public Radio, Adirondack Park Agency (APA) commissioners recently toured the Adirondack Club and Resort (ACR) site. In addition, parties to the hearing have less than a week to make any final reply to the closing statements or legal briefs. In November, Adirondack Club and Resort’s public hearing record will close, and be delivered to APA. This winter, the commissioners will have to render a decision on the application based on that record, and only upon that record. Eight years of pre-hearing review and debate will reach some kind of conclusion. For those unfamiliar, ACR is a resort proposal comprised of 719 dwellings in 14 separate areas proposed to sprawl across 6200 acres a few miles southeast of Tupper Lake Village, on the slopes of Mount Morris above Tupper Lake and Lake Simond, and just west of Follensby Pond. The subdivisions are proposed for 4800 acres of lands classified by the APA as Resource Management (the most protective land use area under the APA) and 1200 acres of lands classified as Moderate Intensity Use, with a few hundred acres classified as Low Intensity Use. This is the largest second home development proposal to come to the APA since the mid-1970s.
In future posts, I may focus more on the ACR hearing record, but for now I write about several personal impressions, as well as myths about the hearing and the APA law.
Impression 1: All of us involved in this hearing had the privilege of appearing before a truly competent, unbiased, helpful law judge in control of the proceedings, Daniel O’Connell of the NYS Department of Environmental Conservation’s Office of Hearings and Mediation Services. For newcomers to a full-blown adjudicatory hearing, Judge O’Connell regularly coached and talked parties not represented by lawyers through our frequently awkward efforts to cross-examine witnesses. Sometimes, he suggested how we could reword our questions to avoid objection. He was assiduous about maintaining the record and exhibits, reasonable about the hearing schedule, insisted upon decorum at all times, patiently listened to all motions and explained his rulings. Most significantly, he gave all parties an equally liberal opportunity to present evidence, admitting into evidence many items that opposing lawyers argued should not be in his effort to assure the APA commissioners with as full a record as possible.
Impression 2: My colleague Dan Plumley and I have watched the APA closely since 1987, and observed past agency staff developing a hearing record. Therefore, we were regularly surprised – and occasionally shocked – by the premature lengths agency hearing staff went in this hearing to argue that various draft conditions on a permit would mitigate demonstrated or potential adverse impacts of the ACR. One day early in the hearing, the agency hearing staff member seemed less interested in what a witness had to say about actual or potential visual impacts of the subdivisions, and more interested in how draft staff conditions had already addressed the problems. How could this staff person know to propose a solid mitigation measure if he wasn’t completely listening to the witness? Wasn’t developing the hearing record more important than presenting draft conditions to a permit so early in the proceeding before the evidence was presented? Isn’t the agency by law and regulation supposed to avoid and minimize impacts before it simply accepts them and attempts to mitigate the damage? I know that the hearing staff are not offering any recommendation to the commissioners as to whether or not to issue a permit, a permit with conditions, or a denial. I also realize that some of the proposed conditions may constitute effective mitigation. However, hearing staff appeared overly eager to condition a defective application and bend to the project sponsor’s aspirations during the proceeding, and even in their closing brief.
Myth 1: APA balances environmental with economic issues. Some media and project proponents portray the 1973 APA Land Use Plan as a balance between resource protection and economic benefits. It wasn’t, and it isn’t. The law’s section 809 states that the agency, in rendering a determination, must find that a given project “would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park, or upon the ability of the public to provide supporting facilities and services made necessary by the project, taking into account the commercial, industrial, residential, recreational or other benefits that might be derived from the project.”
There is a vast difference between taking potential benefits into account, and a legal obligation to balance two very different missions. APA’s is an environmental mission, not a balancing act. The courts have ruled this way for decades. In fact, in Association for the Protection of the Adirondacks v. Town Board of Tupper Lake (3d Dept., 2009), the appellate court wrote that in contrast with the State Environmental Quality Review Act, or SEQRA, “the APA…is not charged with such a balancing of goals and concerns but, rather, is required to ensure that certain projects ‘would not have an undue adverse impact”, etc. “Clearly by placing environmental concerns above all others, the APA’s mandate is more protective of the environment than that embodied within SEQRA.”
Myth 2: The decision by the APA in late 2006 to deem Mr. Foxman’s application complete somehow legitimizes all of the application’s data and information. The applicant argued this all the time during and long before the hearing. It is wrong. The application is a statement about goals, desires, and aspirations. It is an allegation, nothing more or less. The hearing is intended to subject those assertions and allegations to expert scrutiny and the rules of evidence. Those rules say that an applicant must present experts whose testimony is competent, material and relevant. The project sponsor had better come up with experts who can competently and materially defend the allegations in the application, or he or she fails to meet their burden of proof, which leads me to my 3rd myth.
Myth 3: Since Mr. Foxman’s application was deemed complete, and because his hearing lawyer was schooled in the law (he actually was the APA Executive Director at one time), the burden of proof is on other parties to show how the application may fail to meet the statutory and regulatory requirements of the APA. Wrong. The burden of proof is squarely on the applicant. “The burden shall be on the project sponsor to present testimony concerning the matters alleged in the application (emphasis mine)” (Section 580 of APA Regulations). Mr. Ulasewicz tried to switch that burden many times during the hearing, often attempting unsuccessfully to intimidate witnesses about their knowledge of APA law and regulation. “Has so and so expert read the Act?” he would ask. “If he had, he would know that residential development is an allowed use of Resource Management,”etc. Adirondack Wild’s expert, who was a conservation biologist, pointed out that he was not retained to debate whether the Act allows development, but to present evidence about how and where the location, scope and intensity of that development could impact sensitive natural resources.
To go one step further, even an impartial observer – and I readily admit to not being one – would have noticed how poorly Mr. Foxman’s team met its burden of proof about the alleged tremendous economic benefits of the ACR, its alleged vast sales and tax potential, and its alleged immaterial burdens on the community. ACR’s so-called expert witnesses in these arenas often were unfamiliar with the application, or where the data in it came from, or could not disclose material and relevant sources to back up their arguments. I may return to the hearing record in future posts.
Photos: Above, outlook from summit of Mt. Morris, Cranberry Pond and Lake Simond in distance; Below, scene from the hearing in Ray Brook, Judge O’Connell at center.
A couple weeks ago, I told you the local election to watch this fall was the Tupper Lake village mayor’s race.
As of this week, that’s no longer the case. The Tupper Lake Free Press is reporting this week that incumbent Mayor Mickey Desmarais is bowing out of the contest, leaving Franklin County Legislator Paul Maroun as the sole candidate.
Desmarais faced a couple hurdles — namely, Maroun had locked up support from village Democrats and Republicans. But as Jess Collier of the Adirondack Daily Enterprise put it, those realities didn’t put the race completely out of reach for Desmarais.
Reporting for WNBZ, George Earl wrote that “verbal attacks” against Desmarais over his somewhat critical stance on the Adirondack Club & Resort project led to his decision to drop his candidacy.
In an interview with the Tupper Lake Free Press, Desmarais said the criticisms didn’t bother him — but they were affecting his family and friends.
His opponent, Paul Maroun, responded to the news Wednesday, calling Desmarais a “great leader.” “I just had a different way of being a leader for the community,” Maroun told WNBZ. “I decided if you’re not 110 percent behind the resort, it’s not going to work.”
This story is still developing and I’ll check back in when some local reaction starts filtering through.
Most American communities will ultimately develop according to how they are zoned. Absent state or federal regulatory protection of wetlands, for instance, or other legal protection or zoning overlays, land in R-1 or other residential zoning will ultimately, some day be valued, bought, sold, and developed consistent with the number of houses allowed there under the local zoning code.
Of course, towns are legally allowed to plan for their futures, and regulate development in a far more creative fashion, but few in my area seem to use that authority. I live outside the Adirondack Park in Saratoga County, and found out that the allowable density under the zoning law in my town far outweighed the presence of a lot of small (read unregulated) wetlands, wet soils, lots and lots of trees, and well adapted critters like hawks and owls. An out of state developer was, therefore, “entitled” to 18 homes and 18 separate driveways on 18-wooded acres in this R-1 residential zone. Any questioning of this formula resulted in assertions by the town attorney that the applicant has vested rights in that number of lots. Lo and behold, the planning board actually asserted its authority and knocked out two lots, but I suspect that was only because a bunch of neighboring citizens, including my family, sued the town for failing to conduct a meaningful environmental review (the suit proved ultimately unsuccessful).
The neighbors walked and photographed the land in question in all seasons, and predicted that building over such a high water table would require expensive engineering vulnerable to failure, subjecting the neighbors to flooded cellars, and requiring sensitive wildlife “to move.” Any sympathy at town hall evaporated after the lawsuit. The board felt they had bent over backwards by knocking out two lots. Why this swampy land full of wood frogs was wrapped into the adjoining R-1 district was the town board’s, and not the planning board’s responsibility.
In contrast, the Adirondack Park Agency (APA) must interpret development density in the context of complicated regional legislation called the APA Land Use and Development Plan whose purpose is to “insure optimum overall conservation, protection, preservation, development and use of the park’s unique resources.” Under the APA law, there are no land use zones. In fact, you can not even find the word “zoning,” or zone in the definitions section. There are, instead, “land use areas.” Each of these six areas is described as to their character, purposes, policies and objectives. Each has a different guideline for the overall intensity of development which, according to the law’s logic, is compatible with and help to perpetuate the existing character, purposes, and uses of the land.
For instance, under the Resource Management (RM) land use area (whose basic purpose, quoting from the Act, is “to protect the delicate physical and biological resources, encourage proper and economic management of forest, agricultural and recreational resources, and preserve the open spaces that are essential and basic to the unique character of the park”) the overall intensity of development “should not exceed approximately fifteen principal buildings per square mile.” Hence, the oft-used expression that in this largest and most protected of private land use areas there is “43-acre zoning,” or one principal building allowed per 42.6 acres.
“43-acre zoning” is a serious misreading and misapplication of the APA law. This is because mathematical achievement of the overall intensity guidelines should only be viewed in context with other criteria for determining project approvability, including whether or not a development project would be compatible with the purposes, policies and objectives of the land use area in question, or whether it would cause an “undue adverse impact” upon the resources of the park which, in turn, must be assessed according to numerous and defined development “considerations” for water, land, air, noise, critical resources, wildlife, aesthetics, historic factors, and lots more defined in regulation. Knowing this makes the “shall not exceed approximately” language of the overall intensity guidelines more understandable. The Act is clearly not like my town’s zoning law. 43-acres per principal building in RM are not a vested right, but a guideline judged in context with other equally weighted criteria needed to comprehensively assess a given project.
Some APA applicants, particularly if they have attorneys representing them, misread the APA Act purposefully and speak of these intensity guidelines as a legal, vested, valuable (in dollars) right. Even the APA can forget the context of its own law. For instance, as the Adirondack Club and Resort (ACR) hearing got underway in March, APA hearing staff issued a draft document attempting to stipulate how many mathematical “building rights” the applicant Michael Foxman had in the two affected land use areas, Resource Management and Moderate Intensity Use. This language was objected to by a variety of parties, and APA quickly conceded the point and from then on used the term “principal building opportunity.”
Foxman’s ACR attorney Tom Ulasewicz never conceded the point, and used the term “building rights” repeatedly, even at the last day of the hearing in late June. At no point do I recall APA staff correcting him, or objecting to his frequent assertion of “building rights” in the hearing record. This tolerance for language that so distorts the law’s purposes may be a pet peeve of mine, but I fear it’s a symptom of a lowering of standards for project review at the park agency.
Does the fact that ACR’s Michael Foxman proposes to build 82 new principal buildings on nearly 4800 acres of Resource Management mean he is in the clear as far as this aspect of the law goes? Applying the overall intensity guidelines math (“43-acre zoning”) means he could “potentially” build 111 new homes on RM. As ACR attorney Ulasewicz frequently pointed out, his client is far below the “legal threshold.” There are 29 “additional principal building opportunities” which ACR is “not using” he pointed out at frequent intervals.
The answer to such a distorted view of the law should be that after weighing the hearing evidence and its law, the APA would be completely within its legal rights to declare that, for instance, all or large portions of the RM land should remain as it is, undeveloped, so that this land use area can continue to serve its legally defined purposes, policies and objectives, and so that a variety of undue adverse impacts may be avoided.
Photo: APA Staff at a 2007 field trip to the ACR site.
The region is fortunate that the Adirondack Daily Enterprise is covering each session of the Adirondack Club and Resort (ACR) adjudicatory public hearing. Their reporter, Jessica Collier, is doing a good job writing multiple, interesting stories about each day’s testimony and cross examination.
One of the witnesses reporter Collier covered this week (see Adirondack Daily Enterprise’s June 2nd edition) was Shanna Ratner. I’ve known of Shanna Ratner and her firm, Yellow Wood Associates, for many years. Adirondack Wild’s Dan Plumley contacted her to testify at this hearing during 2007 when he worked for the Association for the Protection of the Adirondacks because he knew she was not just smart and accomplished, but a thorough, deep thinker, and analytical. We were glad that she was retained by Protect the Adirondacks. Among many other projects, she helped the Adirondack North Country Association to develop a program seeking to add greater value to the region’s forest products. Yellow Wood offers a wide array of consulting services in rural, community development. Judging from her resume, Shanna has devoted a large part of her professional and personal life to helping rural communities survive and develop, if not thrive by focusing on the strengths of their people, their natural resource base, their histories and geography, and their talents for organizing. She has a Masters degree in Agricultural Economics from Cornell University. Among the publications she has authored or co-authored are: “Keeping Wealth Local: Community Resilience and Wealth,” and “Challenges and Opportunities for Rural Communities in a Rapidly Changing World.” She has reviewed a lot of resort development in neighboring Vermont, among other places, and has real-world experience to offer the hearing.
Among other points in her testimony this past week, Ratner challenged ACR’s assertion that “the majority, if not all, of the construction workers will come from the regional labor force” (ACR 2010 Fiscal and Economic Impact Study). Of those firms qualified to construct a resort of this large scale, Ms. Ratner testified that “these firms will use their own employees first, followed by subcontractors with whom they have previous positive experiences. Only after these avenues have been exhausted will they look for additional hires. It is highly unlikely that they would open a hiring hall locally; they are far more likely to work through their own internal channels and with their subcontractors to locate qualified firms and let the firms locate qualified individuals…It is highly unlikely that the ACR will provide a substantial boon to the many unemployed construction workers in the four county area” (Franklin, St. Lawrence, Hamilton and Essex). Under cross examination, she said that the ACR methodology for arriving at their employment numbers uses a simplistic formula not used by other serious resorts with which she is familiar.
She also punched holes in ACR economic multiplier figures. She argued that per capita costs of the sewage infrastructure are likely to be higher than estimated because of the risk of excess sewer capacity, and a lack of home sales to support those costs, leaving those burdens to the community. On town services, she pointed out that newcomers like ACR homeowners will demand better service delivery and quality, sending service costs up. On payment in lieu of taxes, Preserve Associates has no control over the value of the house that eventually gets built, so ACR can not predict accurately the assessed value. As a result, ACR tax revenue projections may be significantly inflated. She also argued that Tupper Lake must plan for peak use periods, and ACR figures for service demands only estimate average use periods.
In summary, according to her testimony, ACR estimates of local employment may have no basis in reality, per capita service costs may be higher than ACR’s application estimated, and revenues from payments in lieu of taxes may be lower because future owners are not required to build million dollar homes.
Not much of this testimony will be found in the Tupper Lake Free Press, where editor Dan McClelland unabashedly and uncritically shouts loudly for the ACR, shouts down anybody with concerns, and not just on the editorial pages. Would that the Free Press more broadly represent the community it serves and be reasonably impartial, knowing how many in town may badly want the ski area redeveloped, but who may be skeptical about ACR claims.
This week the Free Press chooses to only quote the financial and economic analysis of the ACR. In contrast to the even-handed coverage of the Adirondack Daily Enterprise, McClelland writes this week about Shanna Ratner and any witness put forward by ACR “opponents”: “the interesting thing about ‘expert’ witnesses is that they can be readily found anywhere. They often testify selectively to meet their employer’s requirements” (Ratner is not employed by Protect the Adirondacks, she is a paid consultant). McClelland continues: “APA Commissioners must listen to what the people of Tupper Lake and their leaders want in the development. What the ‘experts’ of the opposing groups testify must be considered by the board in the fashion it is delivered: paid for by the people who have an agenda to stop the resort.”
Putting an ACR-type application to the test of meeting rigorous standards of review that might actually withstand professional scrutiny, and thus better serve its local community and the park is not on the Tupper Lake Free Press agenda.
The Adirondack Club and Resort (ACR) adjudicatory public hearing is finally underway. The ACR project was first introduced as a conceptual Adirondack Park Agency (APA) application in 2004. Seven years later, it is still massive, involving 719 dwelling units spread over 6,200 acres near Tupper Lake.
Hearing witnesses gave ample evidence last week that show APA’s staff decision to deem the ACR application complete in the fall of 2006 to have been premature. In reference to the applicant’s repeated failing to produce any kind of serious wildlife or natural resource studies, a key witness for APA, retired director of regulatory programs Mark Sengenberger, noted that APA can only ask for additional information and not receive it so many times. Wildlife habitat was a key piece of that missing information, Sengenberger said. As other witnesses revealed, also missing was any rigorous assessment of alternative designs of the development. The costs of not requiring comprehensive data before deeming such a complex and controversial application complete are considerable. Between the applicant, the APA and the hearing parties, millions of dollars have been spent over six years in pre-hearing phases of the ACR without arriving at any deep understanding of the site to be developed. There are also big gaps in understanding the reliability of infrastructure and financing data in the application. Countless person hours have been spent at APA struggling to get information out of this applicant. I suspect that several legitimate requests from citizens to send other Park projects to hearing were denied, in part, because APA is such a small agency and ACR has consumed too much of its human and economic resources since 2004.
Dr. Michael Klemens, a conservation biologist and witness for Adirondack Wild: Friends of the Forest Preserve, stated last week at the hearing: “we are forced to spend time at this hearing debating the lack of biological data, which should have been compiled and assessed before deeming the application complete, while instead this hearing should be discussing the implications of a robust set of ecological information that actually informs how and where to site development.”
In characterizing the proposed layout of development on the ACR site, Dr. Klemens stated “this is classic sprawl on steroids.” The ACR spreads negative ecological impacts out across the landscape, he stated. He added that by compacting the design to be less fragmenting of the landscape, many objectives would be met, both economic and ecological. Less money would be spent simply reaching the site with infrastructure, for example, while the impact or zones of influence of development on sensitive areas would be smaller. His testimony revealed a well known process to successfully build housing in sensitive landscapes that involves developing a complete understanding of the project site first, mapping that information, and only then developing plans for housing which avoids the most sensitive areas and maintains the integrity of ecological processes.
This could have happened for ACR, but unfortunately this application does the very opposite, he noted. Only the APA can determine why they allowed this to happen, he stated. Asked whether or not there is sufficient biological and ecological information in the application for the APA to reach a determination of no undue adverse impact, Dr. Klemens stated “there is insufficient data to make such a determination.”
Asked whether the APA could merely place conditions on a defective application which purport to “mitigate” adverse impacts, Dr. Klemens said “a defective application should never be conditioned. It should simply be denied without prejudice, and the applicant given time to develop that information, and resubmit the application.”
Dr. Klemens is the Planning Board chairman for a town in Connecticut. In that capacity, he said he often imposes expectations on developers working within a complex, ecologically important site to identify and map sensitive resources prior to laying out development sites. “Understand the site first, and from that understanding develop plans for housing or other development.” In fact, he noted, in his experience fast-tracked applications are those that have developed good biological and natural resource data. That way, conflict is reduced, development occurs in the less sensitive places, and money is saved. The “train wrecks” result when a process does not allow for understanding natural systems in the first place, like the ACR.
In responding to cross examination, Dr. Klemens took time to explain his view that his testimony is not about whether or not development should or can take place on the ACR site. It is very likely that development is compatible with areas on the site, he said. The “real issue involved in this hearing is the amount, intensity and lay-out of that development. That’s the key.”
How can the APA use the ACR experience to improve its project review? One way is to mimic the way its sister agency, DEC, as well as many town and county planning boards utilize the State Environmental Quality Review (SEQR) Act. After determining that a project may have one or more significant environmental impacts, a step known as a positive declaration of impact, the lead agency in SEQR must require an environmenal impact statement (EIS) of the developer. Project scoping invites the public to comment on the proposed topics to be covered by the EIS. “The purpose of scoping is to focus the EIS on the most relevant issues and potential impacts, including means to avoid or minimize those impacts; the lead agency may thereby ensure that the draft EIS will be a concise, accurate and complete (emphasis mine) document adequate for public review” (from: www.dec.ny.gov).
Think of the APA application process as a version of SEQR, and the APA’s review as a kind of EIS. Before deeming an application complete, the agency could invite the public to help APA undertake project scoping in order to ensure that an application actually and thoroughly answers key questions, and provides the information required for a comprehensive review of impacts. If that process were used, there might be more meaningful constituent participation with APA and fewer “train wrecks” like ACR, where so much time is spent at an APA hearing debating the paucity and reliability of information and data needed by the commissioners to reach a sound, post-hearing decision. In fact, I remember several APA commissioners suggesting this very reform of their own project review of large projects in 2008, following their approval of the FrontStreet application in North Creek. I have yet to see positive results from their suggestions.
Photo: Dr. Michael Klemens points to a map of ACR during his testimony at the public hearing last week.
Tupper Lake is hurting. Logging no longer employs as many people as it once did. The Oval Wood Dish factory closed years ago. Young people leave because they can’t find work. Over the past decade, the community lost 7 percent of its population.
Enter the developers behind the proposed Adirondack Club and Resort. They want to build a year-round resort with 650 residential units in the vicinity of the Big Tupper Ski Area. They also plan to refurbish and reopen the beloved ski area. » Continue Reading.
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